https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1458

Petters v Majani Mingi Sisal Estate Limited (Cause E093 of 2024) [2026] KEELRC 1458 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1458 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Cause E093 of 2024 J Rika, J May 29, 2026 Between Joseph Michael Petters Claimant and Majani Mingi Sisal Estate Limited Respondent Judgment 1.The Claimant filed his Statement of Claim dated 5th November 2024. 2.He avers that he was employed by the Respondent agricultural company, as a general engineer, on 1st January 2022, until 31st August 2024. 3.His performance was exemplary. 4.On 20th August 2024, the Respondent purported to terminate the Claimant’s contract, in total disregard of the substantive and procedural provisions of the Employment Act 2007. 5.He was not issued notice, paid in lieu of notice, heard, or consulted by the Respondent, before termination. 6.The Respondent undertook to pay the Claimant’s terminal benefits, but did not do so. 7.He reported the dispute to the Ministry of Labour. Parties were heard on conciliation. 8.The Conciliator found in favour of the Claimant, recommending that the Respondent pays to him, notice at Kshs. 503,117; annual leave at Kshs. 419,254; gratuity at Kshs. 940,325; and 6 months’ salary in compensation for unfair termination at Kshs. 3,018,702 -total Kshs. 4,881,408. 9.The Respondent did not comply, paving the way for this litigation. 10.The Claimant prays for: -a.Declaration that termination was unfair and unlawful.b.Unpaid salary for 9 days worked in January 2022, at Kshs. 105,000.c.1-month gross salary in lieu of notice, at Kshs. 503,117.d.Annual leave pay of 25 days at Kshs. 419, 264.e.Gratuity over a period of 2 years and 8 months, at the rate of 21 days’ salary for each year, at Kshs. 904,325.f.Compensation for unfair termination equivalent of 12 months’ salary at Kshs. 6,037,404.Total...Kshs. 8,005,110.g.Costs.h.Interest.i.Any other suitable relief. 11.The Respondent filed its Statement of Response, dated 13th December 2024. It is conceded that the Claimant was employed by the Respondent. 12.He was employed as a general engineer, in charge of light and heavy duty workshops. His duties were specified. 13.His performance was wanting. He was unable to meet the Respondent’s operational needs. 14.He had at recruitment, misrepresented that he was able to manage both light and heavy-duty workshops. 15.At a meting held on 26th August 2024, he stated that he preferred to manage only light-duty workshop. 16.He failed to adhere to the Respondent’s daily reporting requirements. 17.Without authorisation, he outsourced repairs for the Respondent’s fleet of motor vehicles. 18.He demonstrated lack of interest in his work. He did not observe working hours. 19.He was paid full salary for January 2022. He was actively subscribed to N.S.S.F, and ineligible for gratuity / service pay, under Section 35 [6] of the Employment Act. 20.The Human Resource Manual came into effect in February 2024, and could not apply to the Claimant retrospectively. 21.Termination was fair and lawful. It was preceded by discussions between the Claimant and Management. 22.The findings and recommendations of the Conciliator were inaccurate, and therefore unacceptable to the Respondent. 23.The Respondent avers that it is ready and willing to pay the Claimant his lawful dues. This was communicated to the Claimant. 24.The Claim was heard and closed on 28th November 2025. The Claimant gave evidence, as did Respondent’s managing director Harris Horn and Respondent’s consultant George Combos. 25.The Claimant adopted his pleadings, witness statement, original and supplementary documents, in his evidence-in-chief. 26.He deals with farm machinery. He found very old equipment at the Respondent’s plantation. They included light machinery, medium size and heavy machinery. He set up systems for maintenance. Heavy machinery including tippers were grounded. He revived them. He was not placed on performance improvement plan. His contract was terminated unfairly. He was promised terminal benefits, which the Respondent did not pay. 27.Cross-examined, he told the Court that he has over 40 years in his field. He did not go to university. He was not a member of the Institute of Engineers. He never received a formal contract of employment. E-mails were exchanged between the Parties, showing employment. 28.There were no discussions between the Parties, prior to the Respondent’s letter to the Claimant, dated 20th August 2024. Termination was not consensual. He did not insist that he only wished to handle light workshop. It is not true that the Respondent wanted him to handle heavy-duty workshop, which he was not willing to handle. There was no agreement that the Claimant leaves employment. 29.He did not express inability to work. He did not write back disputing the letter dated 20th August 2024. He did not recall meeting the director and the general manager, regarding termination. 30.He commenced employment on 1st January 2022 as shown in the certificate of service. He did not ask for salary for 9 days worked in January 2022, during his service. Human resource officer computed 25 days of annual leave. The Claimant contributed to N.S.S.F. He merits gratuity. He has not claimed pension from the N.S.S.F. He has not secured alternative employment. He is of retirement age. He works at his own farm. 31.Redirected, he told the Court that he was offered the job by the Respondent, and accepted it. His job description did not call for qualifications. Pay slips on record show his earnings. 32.Harris Horns adopted his witness statement and documents filed by the Respondent, in his evidence-in-chief. He explained that the Respondent is a private company, involved in growing and processing of sisal. 33.Cross-examined, he stated that the Claimant reported to him and the consulting manager. He did not deal directly with him. Horn learnt that the Claimant was not performing his job in accordance with expectation. He did not have any minutes of any meeting held between the Claimant and the Respondent, concerning the Claimant’s performance. The Respondent issued the Claimant the letter dated 20th August 2024. There was a meting between the Parties on 26th August 2024, which Horn did not attend. 34.George Combos relied on his witness statement and documents filed by the Respondent, in his evidence-in-chief. He was one of the Respondent’s consultants. He oversaw operations. 35.Cross-examined, he told the Court that he is a sisal farmer. He is not qualified in engineering. He has engineering experience. He is not an Employee of the Respondent. His role was consultancy. The Claimant was completely under him. The meeting of 26th August 2024, took place. It was on mutual separation. Termination was on 20th August 2024. 36.The issues are whether termination was consensual or initiated by the Respondent; whether, if it was initiated by the Respondent it was procedurally and substantively fair; and whether the Claimant merits the prayers sought. The Court Finds: - 37.Employment. The Respondent employed the Claimant as a general engineer from 1st January 2022 to 31st August 2024. This is evidenced in the certificate of service issued by the Respondent dated 11th September 2024. 38.The Respondent appears to have used the term ‘engineer’ loosely. The Claimant told the Court he has never seen the inside of an engineering faculty, in any university. He did not have any qualifications as an engineer, but had over 40 years’ experience in his field. 39.Under the Engineers Act, 2011, an engineer is a person registered as a professional engineer, a graduate engineer or a consulting engineer, who holds a valid licence. 40.Section 16 defines a professional engineer as a registered graduate engineer who has obtained practical experience as prescribed under the Act. A professional engineer must have passed professional assessment examination conducted by the Engineers Board. He must be a member of the Institution of Engineers of Kenya 41.A consulting engineer must have practised in a specialized engineering field as a professional engineer for a period determined by the Board. In addition, he must have achieved a standard of competence, to enable him practice as a consulting engineer in that particular specialization. 42.A person is eligible under Section 18 of the Act to be registered as a graduate engineer, if he is the holder of a degree, a diploma or its equivalent from a university, a college or school of engineering in other institution recognized by the Board, and is a citizen or permanent resident of Kenya. 43.There is no other pathway to the title ‘Engineer.’ The Claimant was probably a mechanic, with a wealth of experience, but was certainly not an engineer. 44.His supervisor George Condos himself admitted he was not an engineer, but a sisal farmer. How would he be able to supervise the man entrusted engineering works? 45.Mutual Separation? The Respondent explains that the Claimant had presented himself at recruitment as an engineer, able to oversee light and heavy-duty workshops. He however was unable to handle heavy workshop, expressing his wish to be limited to the light-duty workshop. 46.According to the Respondent the parties met, and agreed that the Claimant’s contract is terminated, to enable the Respondent find a suitable replacement. 47.The Claimant denies that there was such a consensus. 48.The Court is unable to find any record of an agreement on termination of the Claimant’s contract. 49.Combos referred to a meeting held on 26th August 2024 between the Parties, where such consensus was reached. There are no minutes of such a meeting, 50.The letter of termination, which was referenced ‘end of arrangement,’ did not specify on which date the Parties met, and agreed on termination. The letter itself is dated 20th August 2024, and obliquely refers to a ’recently held meeting.’ 51.The author of this letter, Harris Horn, told the Court he did not deal with the Claimant directly. He did not have a record of the meeting held on 26th August 2024. He did not attend the meeting. 52.Combos the consultant, is a sisal farmer with no engineering qualification, but who also claimed to have engineering experience. He confirmed that he met the Claimant on 26th August 2024, where separation between the Parties was agreed. He did not have a written record of the meeting and the agreement. He was not an Employee of the Respondent, but a consultant overseeing operations. 53.There is no evidence that the Claimant was evaluated, and placed on a performance improvement plan. Neither Horns nor Combos was suited to evaluate an engineering role. They were neither graduate, professional nor consulting engineers. 54.The Respondent did not issue the Claimant a written contract. There was no written job description, showing that the Claimant was assigned to light, medium or heavy workshop. 55.The nearest to a written contract or job description is a document exhibited by the Claimant as No.1 on his list of documents. The documents bears the title ‘ Reviving the Light Workshop,’’ which would suggest to the Court that the Respondent primarily intended the Claimant to revive the light workshop. There is no contract or job description, and no performance evaluation capturing the nature or the Claimant’s work. There is no evidence of specific performance targets set for the Claimant by the Respondent, which he is shown to have failed to achieve. 56.Separation was not consensual. 57.Procedure. Having assessed that the Claimant was not achieving the objective over which he was employed, the Respondent had an obligation to issue him a letter to show cause; he had right of reply; the Respondent would then call him to a disciplinary hearing, present him with charges; and give him an opportunity to respond. 58.If the complaint was poor performance, the Respondent had an obligation, preceding the disciplinary process, to place the Claimant on a performance improvement plan. 59.Procedure did not conform to the minimum statutory standards of fairness, under Sections 41 and 45 of the Employment Act. 60.Justification. It was the Respondent’s statutory obligation, under Sections 43, 45 and 47[5], to establish valid ground, justifying termination. 61.The Respondent advanced the reason that termination was consensual, a position declined by the Court, for reasons shown above. The underlying reason was that the Claimant was not able to handle heavy-duty workshop. He sold himself for an all-rounded engineer at recruitment, and was designated ‘general engineer’ able to handle light, medium and heavy-duty workshops. He failed the Respondent, and the Respondent wished to have a replacement. 62.This second ground was not established, again as explained elsewhere in this Judgment. 63.Termination was unfair on account of procedure and justification, under Sections 41, 43, 45 and 47[5] of the Employment Act. 64.Remedies. It is declared that termination was initiated by the Respondent, and was unfair and unlawful. 65.The Claimant’s gross monthly salary, as shown in his pay slip for the month of August 2024, was Kshs. 503, 117. 66.In the letter dated 20th August 2024, the Respondent undertook to pay the Claimant leave, notice and any other dues. 67.He is granted 1-month salary in lieu of notice, at Kshs. 503,117. 68.Annual leave of 25 days is granted at Kshs. 419,264. 69.There is no evidence that the Claimant was denied salary for 9 days worked, in January 2022. There is no evidence of any demand made by him for the amount, when he received salary for other months, until he exited on 31st August 2024. The prayer is declined. 70.The Claimant left employment on 31st August 2024. He did not have a written contract, granting him gratuity. 71.However, the human resource manual dated February 2024, was in force at the time of the Claimant’s exit. 72.Clause 5.8.1 [b][v] states that an Employee is entitled to gratuity / service pay of 21 days’ salary, for every complete year of service. 73.The clause is unqualified, extending gratuity / service to Employees on termination, irrespective of their N.S.S.F status. 74.The benefits under the Employment Act are minimalist, and Employers are free to give additional benefits to Employees, through individual contracts, collective agreements and human resource instruments. 75.The Claimant is entitled to gratuity at the rate given under the human resource policy. He had 2 complete years of service. He is granted gratuity at Kshs. 704,363. 76.He merits compensation for unfair termination. He worked for 2 years and 8 months. He told the Court that he did not secure alternative job, after he left employment. He works at his own farm. He was not shown to have caused, or contributed, to the circumstances leading to termination. He was not on a term contract, and was expected to continue working indefinitely. 77.He is awarded equivalent of 2 ¾ gross monthly salary in compensation for unfair termination, at Kshs. 1,383,571. 78.Costs to the Claimant. 79.Interest granted at court rate, from the date of Judgment, till payment is made in full.In sum, it is ordered: -a.It is declared that termination was initiated by the Respondent, and was unfair and unlawful.b.The Respondent shall pay to the Claimant 1-month salary in lieu of notice at Kshs. 503,117; annual leave of 25 days at Kshs. 419,264; compensation for unfair termination equivalent of 2¾ months’ salary, at Kshs. 1,383, 571 – total Kshs. 2,305,952.c.Costs to the Claimant.d.Interest granted at court rate, from the date of Judgment, till payment is satisfied in full. DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAKURU, UNDER RULE 68[5] OF THE E&LRC [PROCEDURE] RULES, 2024, THIS 29TH DAY OF MAY 2026.JAMES RIKAJUDGE